This Web Site Development Agreement (“Services Agreement” or “Agreement”) is made as of the date on the signed Project Scope/Service Agreement Document (“Effective Date”) by and between Developer (“Developer”), Ally Drez, L.L.C and signed party.
RECITALS
A. Developer provides web site development and design Services, and desires to provide such Services to Company.
B. Company desires that Developer provide such Services to it in accordance with the terms and conditions of this Services Agreement.
NOW, THEREFORE, based on the foregoing recitals and the promises contained in this Services Agreement, the parties hereto hereby agree as follows:
Definitions.
1.1 “Acceptance Period” has the meaning set forth in Section 2.4.
1.2 “Change Order” has the meaning set forth in Section 3.
1.3 “Confidential Information” has the meaning set forth in Section 10.
1.4 “Content” means all text, pictures, sound, graphics, video and other data supplied by Company to Developer pursuant to Section 2.1, as such materials may be modified from time to time.
1.5 “Deliverables” means those deliverables set forth in the Milestone Schedule.
1.6 “Developer Tools” Developer’s preexisting software, code, development tools, concept, techniques, methods, processes and routine, as well as derivatives and modifications thereof; provided that if any such derivative or modification is made in the course of performance under this Services Agreement, then it will qualify as a Developer Tool only if it (a) has substantially the same functionality as other Developer Tools and (b) has general applicability apart from the Work Product or Developer’s performance of Services hereunder.
1.7 “Intellectual Property Rights” means any and all (a) rights associated with works of authorship, including, but not limited to, copyrights, moral rights, and mask works, (b) trademark and trade name rights and similar rights, (c) trade secret rights, (d) patents and (e) all other intellectual and industrial property rights in any jurisdiction throughout the world.
1.8 “Milestone Schedule” means the Milestone Schedule for development of the Work Product and delivery of the Deliverables, as set forth in Exhibit A.
1.9 “Specifications” means the Web Site specifications set forth in Exhibit B, as amended, modified or supplemented in accordance with this Services Agreement.
1.10 “Web Site” means the user interface, functionality and Content made available on pages at www.domain.com.
1.11 “Work Product” means all HTML and DHTML files, Java Script files, graphics files, animation files, database and files, technology, scripts and programs (both in object code and source code form), and all documentation prepared for Company by Developer in accordance with the terms of this Services Agreement, including, without limitation, the Web Site and the Deliverables.
2. Web Site Development.
2.1 Delivery of Initial Content. Company shall deliver to Developer all Content that Company intends for Developer to incorporate into the Work Product.
2.2 Development. Developer shall provide the design, programming and other Services as specified in Exhibit A and Exhibit B. Developer shall provide the Deliverables to Company in accordance with the Milestone Schedule. Time is of the essence with respect to the performance of Developer’ Services hereunder.
2.3 Developer Tools. If any Developer Tools are incorporated into or are used in conjunction with the Web Site, or any Developer Tools are used to manipulate Content for distribution on the Web Site, then Developer hereby grants to Company a worldwide, nonexclusive, assignable, royalty-free, perpetual, irrevocable right to use, reproduce, distribute, create derivative works of, publicly perform, and publicly display such Developer Tools. Throughout the term of the Services Agreement and immediately upon termination, Developer shall provide to Company the most current versions of any Developer Tools to which Company has rights, and any related documentation.
2.4 Milestones and Acceptance. Developer shall make available the Deliverables set forth in the Milestone Schedule for Company’s review and acceptance in accordance with the timeline set forth in the Milestone Schedule. Company will have 7 days to review and evaluate each Deliverable (“Acceptance Period”) to assess whether it meets any applicable Specifications and industry standards for professional, technical and artistic quality. If Company rejects a Deliverable during the Acceptance Period, Company may, in its sole discretion, elect to: (a) extend the time for Developer to provide a revised Deliverable for acceptance testing in accordance with this Section, (b) revise the applicable Specifications and to negotiate an appropriate reduction in the fees to reflect the revised Specifications, (c) complete the Work Product and deduct the costs of completion from the fees payable to Developer or (d) terminate this Services Agreement.
2.5 Content, Links and Advertising. Developer shall not place any content, links or advertisements on the Web Site without the prior written consent of Company.
3. Modifications. If Company desires to initiate changes to the Specifications, it shall submit to Developer a written request to do so. The request will set forth the nature of Company’s proposed changes to the Specifications. Developer shall complete and return to Company a written document (“Change Order”) setting forth, at a minimum, (i) a written description of the changes to the Specifications, (ii) any changes to the Milestone Schedule, (iii) , any changes or additions to the Deliverables and (iv) any changes or additions to the fees. A Change Order will be binding only if signed by both parties. Any and all Change Orders will be governed by the terms and conditions set forth in this Services Agreement, and are hereby incorporated by this reference. Any additional Deliverables or changes to the Web Site described in the Change Order will be subject to acceptance testing as described in Section 2.4. Developer shall quote all charges for the Change Orders at its then-current standard charges, but in no event will it exceed the per hour rate specified in Exhibit A.
4. Payments. Company shall pay Developer the fees set forth in Exhibit A, on the schedule set forth therein. All fees quoted include, and Developer will pay, all sales, use, excise and other taxes which may be levied upon either party in connection with this Services Agreement, except for taxes based on Company’s net income.
5. Term and Termination.
5.1 Term. Unless terminated earlier by either party in accordance with Section 5.2, this Services Agreement shall remain in effect for a period of one year from the Effective Date.
5.2 Termination. This Services Agreement may be terminated immediately up written notice:
(a) by either party if the other party breaches any material provision of this Services Agreement and fails to cure such breach within 30 days after receipt of written notice of such breach,
(b) by Company in accordance with Section 2.4; or
(c) by either party if the other party (i) becomes insolvent, (ii) makes an assignment for the benefit of creditors, (iii) files or has filed against it a petition in bankruptcy or seeking reorganization, (iv) has a receiver appointed or (v) institutes any proceedings for the liquidation or winding up; provided, however, that, in the case any of the foregoing is involuntary, such party shall only be in breach if such petition or proceeding has not been dismissed within 90 days..
5.3 Effect of Termination. Sections 2.3, and4 through 11 will survive expiration or earlier termination of this Services Agreement. Upon the termination of this Services Agreement for any reason and upon request by Company at any time, Developer will promptly de1iver, in their origina1 form, all Content and copies thereof and deliver the originals and all copies of the Work Product in whatever stage of completion to Company.
6. Developer Warranties.
6.1 Work Product Warranties. Developer represents and warrants that any Work Product, Developer Tools, Deliverables, and Developer-made changes to the Content will not (a) infringe on the lntellectua1 Property Rights of any third party or any rights of publicity or privacy, (b) violate any law, statute, ordinance or regulation, (c) contain any third-party materials, except for those items listed in Exhibit C, or (d) contain any (i) ‘back door’, ‘time bomb’, ‘Trojan horse’, ‘worm’, ‘drop dead device’, ‘virus’ or other software code designed to permit access or use of the user’s computer system by a non-authorized party; disable, damage or erase any software or data on the user’s system; or perform any other unauthorized action on the user’s system or (ii) preprogrammed preventative routines or similar devices which could prevent Company from exercising any of the rights granted under this Services Agreement, or from utilizing the Deliverables for the purposes for which they were intended. In addition, Developer represents and warrants that the Deliverables will conform to their applicable Specifications. If the Deliverables do not at any time conform to their Specifications, Developer shall promptly correct the Deliverable, at Developer’s sole expense. Company acknowledges that (i) Developer does not warrant that the Deliverables will work on all platforms and (ii) that Developer is not responsible for the success obtained by Company from the Web Site.
6.2 Company Warranties. Company represents and warrants that the Content will not (a) infringe on the Intellectual Property Rights of any third party or any rights of publicity or privacy or (b) violate any law, statute, ordinance or regulation.
7 Disclaimers and Limits on Liability.
7.1 EXCLUSION OF DAMAGES. EXCEPT FOR A BREACH BY DEVELOPER OF ITS OBLIGATIONS UNDER SECTION 10, AND EACH PARTY’S OBLIGATION OF INDEMNITY UNDER SECTION 9, NEITHER PARTY SHALL BE LIABLE FOR ANY LOST REVENUE, LOST PROFITS OR OTHER CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR PUNITIVE DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
7.2 LIMITATION ON DAMAGES. EXCEPT FOR A BREACH BY DEVELOPER OF ITS OBLIGATIONS UNDER SECTION 10, AND EACH PARTY’S OBLIGATION OF INDEMNITY UNDER SECTION 9, IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY UNDER THIS SERVICES AGREEMENT EXCEED THE AMOUNT OF FEES PAID BY COMPANY TO DEVELOPER UNDER THIS SERVICES AGREEMENT.
7.3 DISCLAIMER OF WARRANTIES. EXCEPTAS OTHERWISE PROVIDED IN THIS SERVICES AGREEMENT, NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE SUBJECT MATTER OF THIS SERVICES AGREEMENT INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT.
8. Ownership. Except for Developer Toots; Company will own all right, title and interest in and to the Content and the Work Product including all software code (in both source and object code form). All Work Product will be deemed work made for hire to the extent allowable under law. If Company does not automatically own as a work made fur hire any of the Work Product upon its creation by Developer, then Developer hereby assigns ownership of all right, title and interest in and to such Work Product, including the copyright and other intellectual property rights in such Work Product, to Company. Developer shall execute all documents reasonably requested by Company to further effect and evidence the foregoing assignment and to provide all reasonable assistance to Company in perfecting or protecting Company’s rights in the Work Product.
9. Indemnity.
Indemnity. Each party to this Services Agreement shall indemnify, defend and hold harmless the other party and its employees, representatives, agents, affiliates, directors, officers and shareholders against any and all claims; suits, actions, or other proceedings brought against it, or any of them, arising out of or relating to any claim resulting from its breach of any of the representations and warranties set forth in Section 6.
9.1 Mechanics of Indemnity. A party shall be entitled to indemnification only if (a)the party seeking indemnification within 10 days of its discovery of a potential claim notifies the other party in writing of such claim or potential claim in sufficient detail to enable the indemnifying party to evaluate the claim (provided, however, that the failure of the indemnified party to provide prompt notice shall only relieve the indemnifying party from its obligations hereunder to the extent that such late notice prejudiced its defense or resulted in increased costs, damages, or expenses) and (b) the party seeking indemnification cooperates in all reasonable respects, at the indemnifying party’s cost and expense, with the investigation, trial and defense of such claim and any appeal arising therefrom. A party seeking indemnification shall not compromise any claim or enter into any settlement without the written consent of the indemnifying party. The indemnified party may in addition retain separate counsel of its own choosing at its own cost. Notwithstanding any of the foregoing; Company shall have the right to take sole: and exclusive control of its own defense at the expense of Developer, if it reasonably believes that it must do so to protect the business, goodwill or its reputation of Company.
10. Confidential Information. Company’s “Confidential Information” is all Work Product and documents related to the Work Product, any Content which Company designates as confidential, and any other materials of Company which Company designates as confidential or which, based on the circumstances surrounding disclosure, Developer should reasonably believe to be confidential. Company’s “Confidential Information” also includes any personal or business information regarding Company. Developer’s “Confidential Information” is all source code of any Developer Tools. Each party shall hold the other party’s Confidential Information in confidence and will not disclose such Confidential Information to third parties nor use the other party’s Confidential Information for any purpose other than as necessary to perform under this Services Agreement. Without limiting the foregoing, each party shall treat the Confidential Information of the other party with at least the same degree of care it uses to prevent the disclosure of its own Confidential Information, but in no event less than reasonable care. Each party shall promptly notify the other party of any actual or suspected misuse or unauthorized disclosure of the Confidential Information. Upon termination of this Services Agreement or the request of the party that disclosed the Confidential Information, each party shall return all tangible copies of any Confidential Information to the disclosing party. Confidential Information shall not include information that the receiving party can prove (a) was generally available to the public at the time it received the information from the disclosing party, (b) was known to it, without restriction, at the time of disclosure by the disclosing party, (c) is disclosed with the prior written approval of the disclosing party, (d) was independently developed by it without any use of the Confidential Information, (e)becomes known to it, without restriction, from a source other than the disclosing party without a duty of confidentiality to the disclosing party, or (f) is disclosed in response to an order or requirement of a court, administrative agency; or other governmental body; provided, however, that (i) the receiving party must provide prompt advance notice of the proposed disclosure to the disclosing party and (ii) any Confidential Information so disclosed shall otherwise remain subject to the provisions of this Section 10.
11. General Provisions.
11.1 Promotions. Company grants Developer the right to link from Developer’s Website to the WebSite, solely for promotional purposes. Subject to Company’s approval of form and placement, Developer shall have the right to place (a) Developer’s logo on the front page and links page of the Web Site and (b) a copyright notice on the Web Site, relating to the Developer Tools. Except as expressly set forth herein, nothing in this Services Agreement shall be construed to grant Developer any right to any trademark, trade name, right of publicity or other right of Company.
11.2 Governing Law. This Services Agreement shall be governed by and construed in accordance with the substantive laws of the United States and the State of Florida, without regard to or application of Florida’s conflicts of law principles.
11.3 Arbitration and Venue. All disputes arising out of or relating to this Services Agreement shall be determined and settled by binding arbitration to take place exclusively in Broward County, Florida, in accordance with the commercial rules of the American Arbitration Association. Any award rendered by the arbitrator shall be final and binding on the parties, and may be entered as a judgment by any court of competent jurisdiction. The cost of the arbitrator shall be split evenly between the parties.
Notwithstanding the foregoing, in the event irreparable injury can be shown, either party may obtain injunctive relief exclusively in the appropriate state or Federal court in Broward County, Florida. The parties agree that any information disclosed to the other party during such arbitration, as well as all findings of the arbitrator, shall be deemed Confidential Information.
In the event of an arbitration or any other proceeding relating to the interpretation or enforcement of this Services Agreement or any breach hereof, the prevailing party in such arbitration or proceeding shall be entitled to recover from the other party all costs, expenses and reasonable attorneys’ fees (including all pre-arbitration, arbitration and appellate proceedings) incurred by the prevailing party in that arbitration or proceeding, in addition to any other relief to which such prevailing party may be entitled.
11.4 Waiver and Modification. The failure by either party to enforce any provision of this Services Agreement will not be deemed a waiver of future enforcement of that or any other provision. Any waiver, amendment, supplementation or other modification or supplementation of any provision of this Services Agreement will be effective only if it is in writing and signed by both parties.
11.5 Severability. If any provision of this Services Agreement is determined to be invalid or unenforceable by a court of competent jurisdiction; such determination will not affect the validity or enforceability of any other provision of this Services Agreement.
11.6 Headings. Headings are for convenience only and may not be construed to define, limit or affect the construction or interpretation of this Services Agreement or any provision.
11.7 Assignment and Subcontracting. This Services Agreement and Developer’s rights, duties and obligations hereunder are personal to Developer and Developer may not assign its rights, delegate its duties or subcontract its rights without Company’s prior written consent in Company’s sole discretion. The parties’ rights and obligations will bind and inure to the benefit of their respective successors and permitted assigns.
11.8 Independent Contractors. The parties to this Services Agreement are independent contractors, and no agency, partnership, joint venture or employee-employer relationship is intended or created by this Services Agreement. Neither party shall have the power to obligate or bind the other party.
11.9 Notice. Every notice or other communication required or contemplated by this Services Agreement by any party shall be delivered by (i) personal delivery, (ii) postage prepaid, return receipt requested, registered or certified mail (airmail if available), or the equivalent of registered or certified mail under the laws of the country where mailed, (iii) overnight courier or (iv) facsimile or e-mail with confirmation copy sent simultaneously in the manner contemplated by clauses (i), (ii) or (iii) of this Section 11.9, in each case addressed to the party for whom intended at the following address:
To Company as specificed by customer in Project Scope/Service Agreement, in signature section.
To Developer:
Ally Drez, L.L.C.
support@allydrez.com
11.10 Counterparts. This Services Agreement may be executed in one or more counterparts, each of which will be deemed an original and all of which will be taken together and deemed to be one instrument.
11.11 Entire Agreement. This Services Agreement, together with the exhibits attached hereto (which are incorporated herein by this reference), represents the entire agreement between the parties hereto concerning the subject matter of this Services Agreement and supersedes any and all prior or contemporaneous oral or written statements, agreements, correspondence, quotations and negotiations.
In Witness Whereof, each of the parties hereto have executed this Services Agreement as of the date first written above.
In Witness Whereof, each of the parties hereto have executed this Agreement as of the date first written in Project Scope / Service Agreement.
